It is well known that the US constitution is very hard to amend, and that topics with a good overall popular approval are impossible to get in the constitution, like abortion or gay marriage.

I am French, a culture where constitutions come and go, based on the principle that whatever is voted on by a referendum becomes the law of the land, and overrides anything it needs to.

Could such a thing be done in the USA, or are things such as abortion or as many senators for Wyoming and California settled forever?

In other words, is there principles of law more important than the current constitution, such as the right of self-determination ?

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    Do you believe that the US Constitution is not fundamentally intended to preserve citizens the right to self determination? I believe that it is, and it is for that very reason that it is difficult to amend. Jul 17, 2022 at 15:08
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    @MichaelHall from by point of view, it is fundamentally intended to get the delegates from New Jersey to agree to be part of the thing 250 years ago, but this is all very conceptual to me.
    – Maxime
    Jul 17, 2022 at 17:54
  • One benefit of the requirement to have a supermajority to amend the constitution is that it provides stability. This was underscored for me by Brexit: it's one thing for parliament/congress/the presidency to change hands from one party to another every four years because of a slim majority, but fundamental constitutional change on that basis could be not only expensive (e.g. joining and leaving the EU every few decades) but dangerous (granting dictatorial powers to the presidency, for example).
    – phoog
    Jul 18, 2022 at 7:15

3 Answers 3


There are two ways to change a constitution:

  • Through amendments to the current constitution.

  • By starting a new constitution.

When you start a new constitutional process from scratch, its legitimacy will not depend on the provisions of the old constitution. This process will develop outside the framework established by existing laws.

You could say that the constitution is self-affirming: its legitimacy cannot come from any law because there are no laws higher than the constitution.

From that point on everything could be (theoretically) possible as a way to legitimate the new constitution: a referendum (in the multiple varieties that it could be present), approval by an assembly, military intervention... The success or not of a new constitution would depend on the forces that support and oppose it.

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    For a historical example, your second approach is how the Constitution replaced the Articles of Confederation. They didn’t follow the legal steps to amend the Articles, but the ratification process convinced everyone that the Articles had in fact been legitimately replaced.
    – cpast
    Jul 17, 2022 at 17:46
  • The main answer is here : there no law higher than the constitution, which I think is the main difference with the european model, in which there is an higher law than the constitution
    – Maxime
    Jul 17, 2022 at 17:49
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    @cpast In most European system, the will of the people is above the constitution. For example, in France, the constitutional council, repeatedly refused to review law adopted by referendum, as the will of the people, source of the constitution legitimity, is above the constitution ("The constituant power is soveireign" - conseil-constitutionnel.fr/en/decision/1992/92312DC.htm)
    – Maxime
    Jul 17, 2022 at 19:01
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    @IllusiveBrian not only in terms of scale but also in terms of the formal source of its sovereignty, which arises (in theory at least) from the pooled sovereignty of its constituent states,
    – phoog
    Jul 18, 2022 at 7:18
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    @cpast I don't know about all european countries, but I know none where treaties are considered higher than the constitution. In france especially it's not the case, and I doubt it's the case for any country, because otherwise you could establish a dummy treaty with Andorra or San-Marino and skip the constitutional amendment process entirely. Aug 30, 2022 at 13:27

There is only one codified process to amend the US Constitution and it does not involve a popular vote:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

It is possible the states themselves could agree to a compact wherein they would be willing to pass amendments which are proposed and win a majority popular vote nationally or within each of their states, similar to the idea of the National Popular Vote Interstate Compact, using the Constitutional Convention provision of Article 5. This would still be restrained by the general prohibitions on what can be changed in the Constitution, which at this time is only the protection of Senate representation for each state.


The US constitution is binding on the laws of all states, and is meant to moderate state vs federal rights and other issues. For abortion, the supreme court recently sent the decision back to the states, and places like Wyorming don't like abortion as much, and so are more likely to ban it while places like California like abortion and so will keep it legal.

If states with large populations which liked abortion like California voted to allow abortion in Wyorming, Wyorming would just ignore them. As other posters have noted there is a process to modify the consitution which isn't a popular vote. State rights are considered more important in America than France, and so there are no national referendums to override state rights.

  • Many of the people who claim "states' rights are important" about abortion are also trying to make abortion federally illegal...
    – user253751
    Jul 19, 2022 at 19:55
  • Passing a law to ban or allow abortion respects state rights more than a national referendum, since the senate has two people for each state, regardless of population, and would be against what op was asking for since they wanted a national vote to allow abortion.
    – Nepene Nep
    Jul 20, 2022 at 0:25

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